The Court of Appeal released its decision in Talley’s Group Limited v WorkSafe New Zealand [2018] NZCA 587 today.

What is it about?

The decision relates to the level of detail provided in charging documents filed by WorkSafe in health and safety prosecutions. The Court was required to consider whether the charging document in Talley’s case complied with the requirement in the Criminal Procedure Act 2011 that it fully and fairly inform Talley’s of the substance of the offence with which it is charged.

Talley’s (facing prosecution after a forklift accident severely injured a worker) had successfully argued in the District Court that WorkSafe’s failure to provide particulars in the charging document of the practicable steps that it allegedly failed to take invalidated the charge. The District Court Judge accepted Talley’s submission and stayed the prosecution as an abuse of process.

That result was overturned by the High Court in 2017. The High Court agreed with the District Court that the charging document was defective, and was critical of WorkSafe’s practice of relying on other documents served on defendants (including the summary of facts that sets out the alleged factual basis for the charge), but held that any prejudice was addressed when the charging document was read together with those other documents.

On a further appeal, the Court of Appeal essentially upheld the High Court’s decision. It held that the practicable steps WorkSafe relies on are not simply the detail of the case that it intends to present, but its ‘very pith and essence’, forming the substance of the offence. WorkSafe’s failure to set those steps out in the charging document means it failed to fully and fairly inform the defendant in that respect. However, the Court also agreed that the summary of facts that accompanied the charge gave Talley’s sufficient notice of the nature of its alleged failures and the ‘defect was therefore one of form only’.

Although the Court held that it was a form over substance issue, it was concerned about prejudice Talley’s might face if reliance on the summary of facts meant WorkSafe could amend the substance of the charge without the Court’s leave by serving a fresh summary of facts. To avoid that prejudice, the Court directed that the charge should be amended and confined to the particulars set out in the summary of facts served when the prosecution was commenced.

Our view

It can sometimes be difficult to advise clients on their defence prospects in health and safety prosecutions because of the vagueness of the charging documents and the breadth of the offence provisions under the Health and Safety at Work Act 2015.

The summary of facts that is served with, or soon after, the charging documents can be helpful but, as the Court in Talley’s observed, this document can be amended by the prosecution without an application to the Court (which is normally required to amend the substance of a charge). In the past, as was the case in Talley’s, this has meant that WorkSafe can essentially change the case a defendant has to meet without the Court’s supervision as WorkSafe’s evidence, or view of that evidence, develops.

That approach should no longer be available to WorkSafe now that the Court of Appeal has confirmed the High Court’s decision. This should mean that, in future cases, WorkSafe will be required to give more careful consideration to how it frames charges against defendants from the outset. It should also mean that, unless it seeks the Court’s leave, WorkSafe will be confined to that case as the proceeding develops.

This should make it easier for defendants facing prosecution to understand, from the outset, the case they have to meet. That will mean defendants and their advisors can be more certain about their approach to the charge including any defence evidence that should be briefed. Finally, the need for amendments to be sought formally should mean that defendants will have the opportunity to raise, and the Court can consider, any prejudice associated with what can sometimes be late attempts at amendment.

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